TERMS AND CONDITIONS OF SERVICE AND END USER’S LICENSE AGREEMENT
The following End User’s License Agreement (the “EULA”) and Terms of Service (the “Terms”) govern your access and use of the following: (i) the FK Auto Workz Application (the “Licensed Software”, the “Application”); (ii) the set of services we provide which enables you to purchase or sell an automobile when using our Web or Mobile Application (the “Services”). Hereinafter, the EULA and Terms are collectively referred to as the “Agreement”.
This Agreement is a contract between you (“Licensee”, “you”, “your”, “user”) and FK Auto Workz. (“FKAW”, “we”, “us”).
You represent and warrant that (a) if you are an individual, you are at least 18 years old and otherwise legally competent in all respects to enter into and be bound by this Agreement or (b) if you are an entity, you are a corporation, limited liability company, partnership or other legal entity in good standing, and possess all legal authority and power to enter into and be bound by this Agreement. If you are a legal entity, you hereby represent and warrant that you have the authority to and do hereby bind your entity and all individuals employed or engaged by your entity that may use the Application or the Services.
We reserve the right, in our sole discretion, to modify, suspend or discontinue any part of the Site at any time, without notice or liability to you or any third party. We also reserve the right, in our sole discretion, to impose limits on certain features and services.
USE OF THIS SITE
FKAW maintains the Site for your non-commercial use. Your use of the Site for any other purpose is permissible only upon the express prior written consent of FKAW. Without limiting the foregoing, you may not: (1) use the Site in a commercial manner, including by distributing, transmitting or publishing the Site or any of its content; (2) interfere with others’ use of the Site; (3) impair the Site’s operation or interfere with or disrupt the servers or networks connected to it; (4) interfere with FKAW’s intellectual property rights; (5) frame or otherwise co-brand the Site or any of its content; (6) deep-link to any portion of the Site; or (7) use the Site for any illegal purpose. We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. In such event, we may inform your Internet service provider of your activities and take appropriate legal action.
- Use the Services, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server used to offer or support the Services;
- Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Services, or other attempts to disrupt the Services or any other person’s use or enjoyment of the Services;
- Attempt to gain unauthorized access to the Services, computers, servers, or networks connected to the Services by any means other than the user interface provided by Password Confidential Premium, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Services;
- Transmit unauthorized communications through the Services, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
- Interfere or attempt to interfere with the proper functioning of the Services or connect to the Services in any way not expressly permitted by this Agreement;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server, or the Services, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- Bypass any robot exclusion headers or other measures FKAW and its partners employs to restrict access to the Services or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Services, or harvest or manipulate data;
- Use, facilitate, create, or maintain any unauthorized connection to the Services, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Services; or (2) any connection using programs, tools, or software not expressly approved by FKAW and its partners;
- Solicit or attempt to solicit personal information from other users of the Services;
- Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Services;
- Upload or transmit or attempt to upload or transmit, without FKAW and its partners’ express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other.
USE OF INFORMATION SUBMITTED
You agree that FKAW is free to use any comments, information or ideas contained in any communication you may send to us, without compensation, acknowledgement or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Site or other products or services.
PERSONAL DATA PROTECTION
By using the Site, you consent to receiving electronic communications and notices from FKAW. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
LINKS TO OTHER SITES
The Site may include links to third-party Websites. FKAW does not control and is not responsible for the content or privacy policies of any linked site, and the inclusion of any link on the Site does not imply our endorsement of it.
While we use our reasonable efforts to maintain the accuracy and reliability of the Site, we do not warrant or represent that it will always function or be error-free. We assume no responsibility or liability for errors or omissions on the Site or for problems with its operation. Your access and use of the Site are at your own risk. Without limiting the foregoing, the site, its content and any product or service offered through it are provided “as is” and “as available,” without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Some jurisdictions do not allow the exclusion of certain warranties, so the above may not apply to you.
LIMITATION OF LIABILITY
In no event shall FKAW, its related companies, and each such company’s directors, officers, employees and agents be liable for any direct, indirect, incidental, special, consequential or punitive damages arising out of or in connection with your access, use or inability to use the site, any information provided by the site.
We are not, in any case liable for indirect, incidental, special, consequential or punitive damages. Some jurisdictions do not allow the exclusion of certain damages, so the above may not apply to you. If any authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent permitted by applicable law.
You agree to indemnify and hold FKAW and its related companies and each of their respective directors, officers, employees and agents harmless from and against any third-party claim or cause of action, including reasonable attorneys’ fees and costs, arising, directly or indirectly, in whole or in part, out of your violation of any law or the rights of any person.
You are a consumer. Nothing in this contract should prevent you from the benefit of rights granted to you by applicable consumer regulation.
This Agreement is subject to, and will be governed by and construed in accordance with the laws of the State of Kansas, to the extent permitted by applicable consumer law. This agreement will not be governed by the conflict of law rules of any jurisdiction, or the United Nations Convention on contracts for the International Sale of Goods, the application of which is expressly excluded.
You agree that any controversy or claim arising out of or relating to the Site or use of the Site or these Terms, other than claims relating to infringement of copyright or other intellectual property, may only be settled by binding arbitration in accordance with the Paragraph or alternatively, you may assert your claims in small claims court if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The arbitration must be held in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by the parties, in accordance with the applicable procedural rules set forth in the then prevailing Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The JAMS Rules and Procedures are available at www.jamsadr.com or by calling (800) 352-5267. The arbitrator must be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply Kansas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. If you initiate arbitration against FKAW, you will not be responsible for professional fees for the arbitrator’s services or any other JAMS fees. If You are able to demonstrate that the costs of arbitration will be cost-prohibitive or greater than the costs of litigation, FKAW will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive or more expensive than the cost of litigation. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision remains in effect and must be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision is null and void, and neither You nor FKAW is entitled to arbitrate their dispute. The arbitration of disputes pursuant to this paragraph must be in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
By agreeing to the arbitration of disputes as set forth herein, you agree that you are waiving your right to a jury trial and limiting your right to appeal and you understand that you are waiving your rights to maintain other available resolution processes, such as a court action.
All copyrightable text, graphics, sound, downloads, software and other material (collectively, the “Content”), the selection, compilation, arrangement and presentation of all materials, and the overall design of the Site are copyrighted by FKAW and are protected by law. All rights reserved. You may print a copy of the Content on your computer only for your own personal, non-commercial home use, provided that you do not remove any copyright, trademark or other proprietary notices from the Content. Any other use of the Content is strictly prohibited unless you have our prior written permission. The Site may also contain content that is owned by third parties, including our advertisers. You may use such third-party content only as expressly authorized by the applicable owner. All requests for permission to reprint or make any other use of the Content should be addressed to Intellectual Property Manager, Copyright Reprint Permission, 636 N Estelle St, Wichita, KS 67214 or [email protected] FKAW does not warrant that your use of materials displayed on or linked to the Site will not infringe the rights of third parties.
FKAW, the FKAW logo, www.fkautoworkz.com, fkautoworkz.com, FK Auto Workz, are included in the family of trademarks and service marks owned by FKAW (this is not an all-inclusive list of FKAW’s trademarks and service marks). Trademarks and service marks designated with the “®” symbol are registered with the U.S. Patent and Trademark Office and with numerous foreign countries. Other trademarks and service marks belonging to FKAW may be designated with the “SM” or “TM” symbols. Our trademarks and service marks may not be used in connection with any product or service without our prior written permission. All other brands, trademarks and names not owned by FKAW that appear on the Site are the property of their respective owners, who may or not be affiliated with, connected to or endorsed by FKAW.
CLAIMS OF COPYRIGHT INFRINGEMENT
If you in believe that materials posted on the Site violate your intellectual property rights, please contact FKAW at Intellectual Property Manager, Intellectual Property Questions, 636 N Estelle St, Wichita, KS 67214 or [email protected] Please include: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other proprietary interest; (2) a description of the copyrighted work or other protected material that you claim has been infringed upon; (3) a description of where the material is located on the Site; (4) your address, telephone number and e-mail address; (5) your statement that you have a good faith belief that the disputed use is not authorized by the copyright or other interest owner, its agent or the law; and (6) your statement, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or other interest owner or are authorized to act on the owner’s behalf.
FKAW is not obligated by this EULA to provide Licensee with any technical support services relating to the Licensed Software and its related Services; however, Licensee may access our Contact page for assistance.